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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> H J Banks & Company Ltd v. Skeen [2001] UKEAT 1003_00_0602 (6 February 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1003_00_0602.html Cite as: [2001] UKEAT 1003_00_0602, [2001] UKEAT 1003__602

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APPEARANCES

 

For the Appellants	MR S JONES (of Counsel) Instructed by: Messrs Eversheds Sun Alliance House 35 Mosley Street Newcastle upon Tyne NE1 1XX


 


MR RECORDER UNDERHILL QC

1. The Respondent in this appeal, Mr Skeen, was employed by the Appellants as a fitter. In the first half of 1999 there were problems between him and some other employees of the Appellants. These were raised by him as a grievance and were investigated by the Appellants. The Respondent was unhappy with the outcome of the investigations and eventually resigned and claimed that he had been constructively dismissed.
2. The Employment Tribunal heard the Respondent's application over 5 days and found that he had been unfairly dismissed. The Extended Reasons sent to the parties on 27 June 2000 were exceptionally full and careful. The essence of the Tribunal's reasoning was that the employer's handling of the Respondent's grievance, of which they were very critical, was so inadequate as to constitute a repudiatory breach of contract, entitling the Respondent to resign.
3. Mr Jones, who appears before us on this preliminary hearing, acknowledges that the Tribunal's findings of fact present him with a considerable obstacle, but he says that the Tribunal erred in law in two ways.
4. First he attacks their finding that the Appellant's conduct amounted to a repudiatory breach. Although he cannot and does not challenge the trenchant criticisms made by the Tribunal of the early stages of the procedure, he submits that by the end, when the Respondent saw Mr Martin, the Director of the Appellants to whom the matter came at the final stage of the procedure, on 7 May 1999, and received the Appellants' letter of the same date, the Appellants had come up with firm and reasonable proposals as to how to deal with the problems which the Respondent had encountered. In particular, the Appellants had offered to put in place a machinery of weekly team meetings which would monitor and supervise the Respondent's relationship with his colleagues, with the Plant Director taking personal responsibility for dealing with these issues; alternatively, a transfer to another site.
5. The Tribunal clearly regarded the proposals as inadequate, but Mr Jones says that they do not say why, which would necessarily involve some consideration of what else the Appellants could reasonably have done. Mr Jones says that this was a point of fundamental importance, since the Respondent could not properly advance a case based on fundamental breach of the duty of trust and confidence until the grievance process as a whole had been completed and had failed to come up with a reasonable answer to what was a difficult problem.
6. He says either that this is a point on which a crucial factual finding was not made, or that the Tribunal's implicit finding that the proposals were so inadequate as to constitute a fundamental breach was perverse. He suggests that the latter error may have reflected a concentration by the Tribunal on whether it was reasonable for the Respondent to refuse the offer, rather than on whether it was reasonable for the Appellants to make it.
7. Secondly, he attacks the Tribunal's finding that the Respondent's resignation was, in truth, a response to the breach which they had found. His essential point is that there was no evidence to suggest that the Respondent would, but for the manner in which the grievance was handled, have been prepared to remain in employment; on the contrary, he says, the evidence shows that the Respondent was not, and had not been from the start, prepared to go on working, whatever the outcome of the grievance procedure. It was clear from the uncontested evidence that his only goal was to leave and be paid off.
8. We are very reluctant to cast doubt on a decision to which the Tribunal plainly gave such care, and there are no doubt possible answers to Mr Jones's points; but we have to remind ourselves that this is only a preliminary hearing, and Mr Jones has satisfied us that the two grounds which he has advanced are arguable and cannot be safely disposed of on a summary basis.
9. Accordingly, we will allow the appeal to proceed. We would estimate, subject to anything Mr Jones would wish to say, that it can be disposed of, provided there are satisfactory Skeletons, in 3 hours. We propose to put it in Category C.